Imprisonment often irrelevant in a prisoner's last days

Published 3:59 pm, Thursday, October 3, 2013

On Tuesday, a federal judge in Louisiana ordered the immediate release of Herman Wallace, a 71-year-old man who has spent more than 40 years in solitary confinement conditions for the murder of a prison guard. Wallace, who maintains his innocence, was hospitalized because he has advanced liver cancer. Prosecutors fought his release to the moment of his departure.

The case against Wallace has been doubtful from the start, and the judge ruled that one error — the exclusion of women from his grand jury — was so serious that it required a new trial. Given the glacial pace of justice in Louisiana, it is highly unlikely he will live to see it.

When Attorney General Eric Holder Jr. announced in August a sweeping set of fixes to America's "broken" criminal justice system, most observers overlooked his call to expand "compassionate release" for elderly or sick federal inmates who pose no public threat. That policy does not affect state prisoners like Wallace, but its logic applies in his case.

The standard justifications for imprisonment — incapacitation, deterrence and retribution — become irrelevant in a prisoner's final days or weeks. Elderly people near death do not commit crimes, and refusing mercy to an aged, dying prisoner does not deter a crime. That leaves retribution, or the belief that it is somehow in society's interest to ensure that some prisoners suffer until the day they die. The state penal systems that operate under this view are not making society more just.

As the prison population in the U.S. rapidly ages — the number of prisoners older than 55 nearly quadrupled between 1995 and 2010 — this brutal mentality harms everyone. The capacity for mercy, critical to any justice system, is eroded every time those in power fail to exercise it.